The Racist History of Family Separation, and the Lawyers Challenging ItHistorians in the News
tags: immigration, family separation, Migrant Detention
Kara Hartzler, who worked as a federal defender in San Diego, had a front-row seat to the impact of the Trump administration’s “zero tolerance” policy that was being used to separate thousands of immigrant parents and their children.
Inside the courthouse where Hartzler worked as an attorney with the Federal Defenders of San Diego, hundreds of distraught parents faced criminal charges of entering the US without authorization, which former president Donald Trump used to separate them from their children.
Most of the time, the parents were charged with illegal entry in mass hearings where they pleaded guilty as a group. They were then often sentenced to time served and returned to the same Customs and Border Protection facility where they had initially been detained. But by the time the parents arrived, their children had been sent to shelters, sometimes several states away. To this day, hundreds of families remain separated.
Hartzler and her colleagues at the Federal Defenders of San Diego, who take on a majority of pro bono federal criminal defense cases in the county, came up with a strategy: Challenge the illegal-entry charge. If defense attorneys could prove that it was unconstitutional and inherently racist, a judge would strike the entire thing, potentially affecting hundreds of cases.
Their research into the law's formation bolstered their case. It showed how congressional lawmakers in the early 1900s invoked overt racism to justify the legislation at the time, discussing how the “mixture blood” of white, Native Americans, and Black people would inflict “great penalty” on the US. They also said Mexicans were “illiterate, unclean, peonized masses” who were “poisoning the American citizen.”
The federal defender’s investigation into the laws relied heavily on research already done by UCLA history professor Kelly Lytle Hernández, who discovered and documented how eugenicists shaped these laws.
“This history had to come out,” Hartzler said. “We started doing research trying to figure out a legal framework that would allow us to challenge this systemic racism in the legal system.”
The racist comments made by lawmakers before passing the 1929 law that was the basis for the illegal-entry and felony-reentry statutes would go on to be the linchpin in their legal argument. Instead of denying the illegal-reentry charge, the attorneys would try to get it dismissed by arguing that it was enacted with the purpose of discriminating against Latinos.
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